SAN FRANCISCO (CN) — A federal judge denied on Friday an injunction to an Oakland journalist who wanted to continue reporting on dangerous, illegal car stunt shows without police intervention.
In his order, Chief U.S. District Judge Richard L. Seeborg said that the act of spectating at these events, called “sideshows,” lacked a significant expressive element and thus did not trigger First Amendment protections.
“A ban on spectating within 200 feet of a sideshow presents merely an incidental burden on speech — not a burden that is far greater than necessary,” wrote Seeborg.
Jose Antonio Garcia — who reports for The Oaklandside under the name “Jose Fermoso” — has covered road safety for over three years and claims that a County of Alameda law criminalizing being within 200 feet of these sideshows to observe the event infringes on the right of reporters to gather news.
Earlier this month, Garcia asked the court for a preliminary injunction on the law to prevent police officers from enforcing the law so he can continue his reporting on what he calls a public safety issue.
Fermoso argues that by outlawing the observation of activity that happens on public streets and sidewalks, the county restricts his access to a traditional public forum for expression, even if the law says nothing specifically about speech.
Seeborg disagreed, writing that just because conduct takes place in an expression-prone place does not transform it into conduct with an expressive element. Nor does he believe that Fermoso’s journalistic intent would change that conclusion.
“The prohibition on spectating at sideshows diminishes Fermoso’s opportunities to gather information about them, but that does not make witnessing them a First Amendment right,” wrote Seeborg. He went on to say that the First Amendment right to gather news does not exempt journalists from general laws.
In his decision, Seeborg said he does still believe Garcia has standing for the case, given that he could reasonably fear arrest for attending these sideshows. Even if no one has been prosecuted under the law yet, the judge recognized that the county has not disavowed enforcing it against journalists.
Seeborg also determined that even if the county law did implicate freedom of speech or press, the ordinance is content-neutral and withstands intermediate scrutiny.
The judge declared that the ordinance was specifically content-neutral because the law didn’t attack speech because of the idea or message it held, but because of the conduct it is associated with — dangerous sideshows.
He declared it withstood intermediate scrutiny because the law is narrow enough to avoid a greater-than-necessary impact on speech. For example, the law only applies to knowing spectators instead of people who happen to be present when a sideshow occurs.
Under intermediate scrutiny, the government has to prove that a law is narrowly tailored to advance a significant government interest if it is to restrict speech. In this case, the interest would be public safety.
“We respect the judge’s position. We respectfully disagree,” said Garcia’s attorney and legal director at the First Amendment Coalition David Loy. “We still believe that the ordinance is a content-based restriction on speech.”
Loy added that his team was looking carefully at whether to appeal Seeborg’s decision on the injunction to the Ninth Circuit Court of Appeals.
Garcia filed the case in the United States District Court of Northern California, claiming that his lawsuit is in the public interest, noting that many people rely on The Oaklandside’s coverage for avoiding these areas or for gauging public safety before they leave the house. Garcia’s reporting even goes as far as mapping areas of Oakland where sideshows are most likely.
Also called “street takeovers” in Los Angeles, sideshows are informal, illegal demonstrations of car stunts often held at intersections or in parking lots.
Although originally hotspots for Bay Area youth culture that took on more of a block party mood, sideshows in recent years have become increasingly associated with violence and shootings.
In September, a 100-person sideshow even took over the San Francisco Bay Bridge for 20 minutes before police dispersed the crowd.